PHOOL CHAND,JAIPUR vs. ITO, WARD-6(4), JAIPUR, JAIPUR

आयकर अपीलीय अधिकरण] जयपुर न्यायपीठ] जयपुर IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES,”SMC” JAIPUR Jh lanhi xkslkbZ] U;kf;d lnL; ,oa Jh jkBkSM+ deys'k t;arHkkbZ] ys[kk lnL; ds le{k BEFORE: SHRI SANDEEP GOSAIN, JM & SHRI RATHOD KAMLESH JAYANTBHAI, AM vk;dj vihy la-@ITA No. 513/JP/2023 fu/kZkj.k o"kZ@Assessment Years : 2009-10 cuke Phool Chand Income Tax Officer Vs. 37, Gopal Nagar A Gopalpura Ward 6(4), Bye Pass, Jaipur Jaipur LFkk;h ys[kk la-@thvkbZvkj la-@PAN/GIR No.: AWWPC 3159 J vihykFkhZ@Appellant izR;FkhZ@Respondent fu/kZkfjrh dh vksj ls@ Assessee by : Sh. P. C. Parwal (CA) jktLo dh vksj ls@ Revenue by : Smt. Monisha Chaudhary (Addl. CIT) lquokbZ dh rkjh[k@ Date of Hearing : 21/09/2023 mn?kks"k.kk dh rkjh[k@Date of Pronouncement: 19/10/2023 vkns'k@ ORDER PER: RATHOD KAMLESH JAYANTBHAI, AM

This appeal filed by assessee is arising out of the order of the National Faceless Appeal Centre, Delhi dated 15/05/2023 [here in after (NFAC)/ ld. CIT(A) ] for assessment year 2009-10 which in turn arise from the order dated 06.12.2016 passed under section 147/143(3) of the Income Tax Act, by ITO, Ward-6(4), Jaipur.

2. In this appeal, the assessee has raised following grounds: - 2 Phool Chand vs. ITO “1. The Ld. CIT(A), NFAC has erred on facts and in law in upholding the action of AO in computing the long term capital gain on sale of property at Rs. 13,93,169/- as against Rs. 4,830/- declared by the assessee by:- (i) restricting the indexed cost of improvement at Rs. 3,00,000/- as against Rs. 16,88,339/- claimed by the assessee (ii) not allowing the deduction u/s 54 of Rs. 12,32,000/- claimed by the assessee by filing additional evidence on the ground that he has not claimed the same in the original return filed u/s 139 or in the return filed in response to notice u/s 148 or during the course of assessment proceedings.

2. The appellant craves to alter, amend and modify any ground of appeal

3. Necessary cost be awarded to the assessee.”

3. At the outset of hearing, the Bench observed that there is delay of 27 days in filing of the appeal by the assessee for which the ld. AR of the assessee filed an application for condonation of delay with following prayers:

“Sub: Application for condonation of delay in filing the appeal. With reference to above it is to submit that the ld. CIT(A), NFAC has passed the order on 15.05.2023. However, the order came to the notice of assessee on 15.07.2023 as stated in the affidavit enclosed herewith. Thus, there is no delay in filing of appeal from the date of communication of order but there is a delay of 28 days from the date of order. The said delay is thus for a reasonable cause as explained in the affidavit of assessee. It is therefore, requested to kindly condone the delay and admit the appeal for hearing.”

3.1 The content of the affidavit is also reproduced here in below :

4. During the course of hearing, the ld. DR not objected to assessee’s application for condonation of delay and prayed that Court may decide the issue as deem fit in the interest of justice as delay is of 27 days only. materials available on record. The prayer by the assessee for condonation of delay of 27 days has merit and we concur with the submission of the assessee. Thus the delay of three days in filing the appeal by the assessee is condoned in view of the decision of Hon’ble Supreme Court in the case of Collector, land Acquisition vs. Mst. Katiji and Others, 167 ITR 471 (SC) as the assessee is prevented by sufficient cause.

6.1 In this case, notice u/s. 148 was issued to the assessee on 17-03- 2016. In response to the said notice, neither anyone attended nor was any written submission filed. Subsequently, notice u/s 142(1) along with questionnaire was issued on 24-10-2016 requesting the assessee to file return of income and other requisite details and the case was fixed for hearing on 31-10-2016. In response to the same, no one attended neither any written submission was filed. However, the assessee attended on 03- 11-2016 and filed application for seeking adjournment for 7 days. The case was adjourned to 09.11.2016. Thereafter, Sh. Pradeep Kumar Jain C.A. and A/R of the assessee attended and submitted return of income in response to notice u/s 148 of the IT, Act and further filed other relevant details from time to time. The assessee in his return of income declared total income at Rs. 77,370/- which is mainly from salary, capital gain and income from other sources. Against the sale of property at Rs. 17,00,000/- the assessee has claimed indexed cost at Rs. 16,95,170/- and offered gain of Rs. 4,830/-. In the return the assessee the assessee has claimed expenditure on construction for an amount of Rs. 8,15,160/- against which substantiate the source of expenditure incurred. Since, there is a mention of the cost of construction in the sale deed ld. AO considered it at Rs. 3 lac.

“7.4 I have perused reply of the appellant and other documents uploaded by him. After going through the details of construction in the sale deed and the material available on record, the AO has restricted the indexed cost of construction/ improvement to Rs. 3,00,000/- on the estimated basis. The appellant contended that this amount is not acceptable. In the written submission the appellant has given that the indexed cost of construction/improvement of Rs 8,15,160/-. However, the appellant has not submitted verifiable documentary evidences to substantiate his claim. The document without verification is not acceptable cannot be accepted as evidence to substantiate claims. The onus to prove the fact of the case lies on the appellant. In the instant appeal, the appellant has not produced any documentary evidences to substantiate cost of improvement with verifiable documentary evidences. In the absence of proof in this regard and in terms of the provisions of section 101 and 106 of the Indian Evidence Act, 1872 which casts the onus of proof on the person who asserts something, the contention of the appellant is rejected that the amount claimed by the assessee in respect of indexed cost of construction / improvement is quite reasonable. 7.5 Further, by the introduction of additional evidence, the appellant contended that he has purchased a residential house at 143, Shripuram Yojana, Gujar Ki Thadi Gopalpura By Pass. Jaipur on 22/10/2008 for Rs. 11,50,000/- and registration charges & expenses of Rs. 67,540/- & Rs. 14.460/- in the name of wife Smt. Kanta Devi Yadav. Hence, the assessee is eligible for deduction under section 54 of the Act for Rs 12,32,000/-[11,50,000 + 67,540 + 14,460). Further, he submitted that while filing return of income in response to notice under section 148 of the Act, he forgot to claim the deduction under section 54 of the Act as he is not much literate and in old age approx. 62 year in 2016 and his consultant not guided properly on purchase of such land. The appellant has relied upon the decision of jurisdictional the Hon'ble Rajsthan High Court, jaipur Bench in the case of Mahadev Balai and other in DBIT appeal no. 36/2017, wherein it is held that -

“7.2 On the ground of investment made by the assessee in the name of his wife, in view of the decision of Delhi High Court in Sunbeam Auto Ltd. and other judgments of different High Courts, the word used is assessee has to invest it is not specified that it is to be in the name of assessee.

7.3 It is true that the contentions which have been raised by the department is that the investment is made by the assessee in his own name but the legislature while using language has not used specific language with precision and the second reason is that view has also been taken by the Delhi High Court that it can be in (50 of 50) [ITA-20/2016] the name of wife. In that view of the matter, the contention raised by the assessee is required to be accepted with regard to Section 548 regarding investment in tubewell and others. In our considered opinion, for the purpose of carrying on the agricultural activity, tubowell and other expenses are for betterment of land and therefore, it will be considered a part of investment in the land and same is required to be accepted."

7.6 I have perusal the above case laws I find that in all cases the appellants had claimed the deduction under section 54 of the Act during filing of return. Other Hon'ble High Courts have different opinions on the above issues. In the case of Prakash v. ITO [2008] 173 Taxmann 311 (Bom) held that it is necessary and obligatory to have investment made in residential house in the name of transferor only and not in name of any other person. Contrary in the case of CIT vs. Kamal Wahal [2013] 30 taxmann. Com 34 (Delhi) held that it is not necessary and obligatory to have investment made in residential house in the name of transferor only, it is sufficient to have in the name of spouse to claim deduction under section 54 of the Act.

7.7 In view of the above, the question arises whether the appellant is eligible to get benefit of deduction under section 54 of the Act without claiming it in filing of return. In this regard, the AO has pointed out in remand report that the appellant neither claimed the deduction under section 54 by filing return u/s 139 of the Act nor claimed the same in the return filed u/s 148 of the Act and in the assessment proceedings too. The facts of the case of the appellant are not identical to the facts of the case! judgement cited, as the assessee failed to claim deduction by filing of retum or reassessment proceedings. However on going through the case laws cited above, I find that in the above mentioned cases, the assessee had claimed deduction under section 54 of the Act by filing of return of income. It is a fact that the appellant had not claimed the deduction u/s 54 either in original return u/s 139(1), revised return u/s 139(5), by filing return u/s 148 or during course of assessment proceedings. Hence, I agree with the findings of the AO that the facts of the case of the appellant are not identical to the facts of the case/ judgement cited, as the assessee failed to claim deduction by filing of return/revised return or reassessment proceedings. Also, in the case of Goetze (India) Ltd. vs. CIT (2006) 204 CTR (SC) 182 (2006) 284 ITR 323 (SC), the Hon'ble Supreme Court held that the assessee can make a claim for deduction,

8 Phool Chand vs. ITO which has not been claimed in the return, only by filing a revised return within the time allowed. In view of the above facts of the case, I am of the considered opinion that the deduction claimed by the appellant by submitting documents as additional evidences under rules 46A of the Income Tax Rules, 1962, are not acceptable. Hence, the AO's findings in the assessment order dated 06/12/2016 stand affirmed. Ground Nos. 2 & 3 are dismissed.”

2. In course of assessment proceedings AO observed that against sales consideration of Rs.17 lacs, assessee has claimed deduction of expenses related to construction made in the year 1995-96 at Rs.8,15,160/- indexed to Rs.16,88,339/- but the expenses claimed are not verifiable nor the source thereof. However, considering the fact that construction is mentioned in the sale deed, AO restricted the indexed cost of construction/improvement at Rs.3 lacs on estimated basis and thus worked out long term capital gain on sale of property at Rs.13,93,169/- as against Rs.4,830/- declared by the assessee.

3. During the appellate proceedings assessee filed application dt. 26.11.2018 (PB 7-8) for admission of additional evidence under Rule 46A of IT Rules to claim that he be allowed deduction u/s 54 of Rs.12,32,000/- for investment made on 22.10.2008 in purchase of house at 143, Shripuram Yojna, Gujar ki Thadi, Gopalpura Bypass, Jaipur in the name of his wife Smt. Mamta Devi Yadav (PB 31-43) for which payment is made from his bank account out of the sale proceeds of sale of house (PB 44-45).

4. The AO in the remand report dt. 18.01.2019 (PB 9-10), as referred in Para 6.3 of the CIT(A) order, accepted that capital gain was invested in purchase

of house property in the name of wife but since deduction u/s 54 was neither claimed in the return u/s 139 or u/s 148 or during the course of assessment proceedings, the case laws relied by the assessee are not applicable. The assessee’s reply dt. 11.02.2019 in response to the remand report is at PB 11-14.

Submission:-

1. From the facts stated above and as arising from the orders of lower authorities, two issues arise for consideration. First is whether the lower authorities are justified in restricting the claim of indexed cost of construction on estimate basis at Rs.3 lacs as against Rs.16,88,339/- claimed by the assessee. Second is whether the Ld. CIT(A) is justified in not allowing the claim of deduction u/s 54 only because the same is not claimed in the return filed u/s 139(1)/139(5)/148 or during assessment proceedings but claimed in course of appellate proceedings.

CIT Vs. Sam Global Securities Ltd. (2014) 360 ITR 682 (Del.) (HC) Claim not made in the return could not be rejected by CIT(A) on the ground that the assessee had not filed a revised return within the time allowed under sec. 139(5) but had only filed a revised computation. Tribunal also has power to allow a claim which is not made in the return.

CIT Vs. Mitesh Impex & Ors. (2014) 104 DTR 169 (Guj.) (HC) If a claim though available in law is not made either inadvertently or on account of erroneous belief of complex legal position, such claim cannot be shut out for all times to come, merely because it is raised for the first time before the appellate authority without resorting to revising the return before the AO. CIT(A) and Tribunal did not need to nor did they travel beyond the materials already on record, in order to examine the claims of the assessees for deduction under ss. 80-IB and 80HHC.

11 Phool Chand vs. ITO CIT Vs. Pruthvi Brokers & Shareholders (P) Ltd. (2012) 349 ITR 336 (Bom.) (HC) An assessee is entitled to raise not merely additional legal submissions before the appellate authorities but is also entitled to raise additional claims before them. Appellate authorities have jurisdiction to deal not merely with additional grounds which became available on account of change of circumstances or law but with additional grounds which were available when the return was filed.

Smt. Raj Rani Gulati Vs. CIT (2012) 69 DTR 122 (All.) (HC) Claim for benefit of proviso to sec. 112(1) not made in the return could be accepted by CIT(A). Assessee is entitled to raise the legal issue before the first appellate authority, which possessed co-terminus powers similar to the AO.

Jute Corporation of India Limited Vs. CIT (1991) 187 ITR 688 (SC) The taxpayer is entitled to raise additional ground not merely in terms of legal submissions, but also additional claims not made in the return filed by it.

M/s Rajasthan State Seeds and Organic Production Certification Agency Vs. DCIT In this case the ITAT Jaipur Bench held that the assessee society is registered u/s 12A of the Act and enjoys its benefits. In our considered view the Ld. CIT(A) being an appellate authority ought to have considered the assessee's claim which was purely legal in nature and the reservation as contemplated by the Hon’ble Supreme Court in the Goetze India Ltd. Vs. CIT(supra) is applicable to AO and not to the appellate authority. We are of the view that assessee's claim should have been considered and appropriate relief in accordance with law may be provided.

In view of above, AO be directed to allow the claim of deduction u/s 54 at Rs.12,32,000/- in computing the capital gain.”

8.1 The ld. AR of the assessee in addition to the above written submission submitted that the claim of the assessee for cost of improvement is arbitrarily replaced with the figure which is far less then which is also rejected without deciding the same on merits of the case. The ld. AR of the assessee based on the decision cited supported the alternative claim of deduction u/s. 54 of the Act for an amount of Rs. 12,32,000/-.

The claim u/s. 54 is without any proof and the payment is claimed to have been made in cash.

2.6 We have heard the rival contentions and perused the materials available on record. It is observed that the assessee society is registered u/s 12A of the Act and enjoys its benefits. In our considered view the ld. CIT(A) being an appellate authority ought to have considered the assessee’s claim which was purely legal in nature and the reservation as contemplated by the Hon’ble Supreme Court in the Goetze India Ltd. vs. CIT (supra) is applicable to AO and not to the appellate authority. We are of the view that assessee’s claim should have been considered and appropriate relief in accordance with law may be provided. In view thereof, we set aside the matter to the file of the ld. AO to consider the assessee’s claim afresh by providing adequate opportunity of being heard. If some compliance is further required, the assessee may be allowed to make the same and decide the grounds of appeal in accordance with law. Thus the appeal of the assessee is allowed for statistical purposes.

On being consistent with the said finding we consider the alternative claim of the assessee to consider the claim u/s. 54 of the Act against the capital claim as per provision of section 54 of the Act after taking on record required information from the assessee and decide the same in accordance with the law.

In the result the appeal of the assessee is partly allowed.

Order pronounced in the open court on 19/10/2023.

Sd/- Sd/- ¼ lanhi xkslkbZ ½ ¼ jkBkSM deys’k t;arHkkbZ ½ (Sandeep Gosain) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Tk;iqj@Jaipur fnukad@Dated:- 19/10/2023 *Ganesh Kumar, PS आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- Phool Chand, Jaipur 2. izR;FkhZ@ The Respondent- ITO, Ward 6(4), Jaipur 3. vk;dj vk;qDr@ The ld CIT vk;dj vk;qDr¼vihy½@The ld CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 513/JP/2023) 6. vkns'kkuqlkj@ By order,

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